The above-entitled parties, herein "Union" and "Company", are privy to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
was
held in Appleton, Wisconsin, on November 11, 1996. The hearing was not transcribed and
both
parties thereafter filed briefs which were received by January 28, 1997. Based upon the
entire
record and arguments of the parties, I issue the following Award.

ISSUE

Whether the Company violated the manning requirements of
the
contract and, if so, what
is the appropriate remedy?

BACKGROUND

The Company is headed by Dick Schumacher, its owner. At all times material
herein,
Schumacher has worked on almost all of the Company's construction jobs, during which time
he
sometimes was accompanied by one or two workers to set and finish tile.

The Company in August, 1989, signed a "Voluntary Recognition Agreement"
recognizing
the Union as the collective bargaining representative of its employes. The parties ever since
then
have been involved in various proceedings dealing with the Company's continuing collective
bargaining obligations with the Union.

Union Business Representative James P. Judziewicz testified that the Company
in about
1989 did not follow the terms of the contract and that it entered into a settlement agreement
which
called for the Company to pay $5,000 to the Union and to sign a 1989-1991 contract. The
Company subsequently complied with the terms of that settlement agreement and on
August 7,
1989, signed a 1989-1991 contract, the only contract that the Company has ever signed with
the
Union. There is no evidence that the Union has ever negotiated with the Company over the
terms
of any subsequent contracts.

Judziewicz added that the Union in 1994 filed an unfair labor practice complaint with
the
Wisconsin Employment Relations Commission ("Commission"), against the Company over
its
refusal to supply the Union with certain requested information relating to the instant
grievance.
He added that the Commission subsequently ordered the Company to provide such
information
(1) and that the Commission's Order was
affirmed by a Circuit Court. (2) Judziewicz
also said that
the Union in January, 1996, filed another complaint with the Commission over the
Company's
refusal to arbitrate the instant grievance. That matter was resolved when the Company
agreed in
May, 1996, to a Settlement Agreement which called for it to proceed with the instant
proceeding
and to be bound to any Award issued thereunder.

Judziewicz said that Schumacher in the early 1990's told him several times that he
was not
doing much work. That was why, said Judziewicz, the Union did not try to enforce its
contract
with the Company over the next several years.

Judziewicz added that someone telephoned him in about December, 1993, and said
that
the Company was working on a union construction project in Stevens Point, Wisconsin.
Judziewicz explained that the Company was required to use a union member for that and any
other
job because the contractual manning proviso set forth in Article XIII, Section 6, governs if
an
owner such as Schumacher personally works on any project.

Judziewicz said that the Company's contract with the Union is still in effect because
the
Company has never served a timely letter terminating it. (3) He also said that the Company in
1995 worked on a union job in Green Bay, Wisconsin, involving Dietrich Tile. Other than
those
examples, the Union at the hearing did not have any specific evidence showing what
construction jobs the Company has worked on since 1994. (4) The Union also introduced certain
tax data which was supplied by the Company (Joint Exhibits 11-13).

Schumacher, in turn, asserted that he never represented himself as a union contractor
for
a Frigo cheese project; that he in fact never worked on the Green Bay job referred to by
Judziewicz; and that he worked on the Stevens Point job for only a week.

On cross-examination, he said that he had been "all by myself the last two years" and
that
Randall Baril, his son-in-law, worked for him before then. He also claimed that he does not
recall
whether he read the 1987-89 contract before he signed it and that he believes that the
contract
expired some time ago. He also referred to several problems he has had with unqualified
workers
sent to him by the Union.

In support of the grievance, the Union primarily argues that the Company under
Article XIII, Section 6, of the contract, is required to always use at least one Tile
Finisher for all
its jobs and to follow the member ratio set forth therein; that the Company dating back to at
least
1992 has violated Article XIII, Section 6, by not doing so; and that compensatory pay in the
amount of $72,190.24 should be awarded.

The Company, in turn, claims that it has not worked on any union jobs throughout
this
period; that the Union is harassing it, and that no compensatory pay should be awarded.

Article XIII of the contract, entitled "Special Work Rules", provides in Section 6:

Section 6. The Employer agrees that the
following ratio will be maintained on a shop-wide
annual basis:

Number of TileFinishers/Minimum
**

Number of TileSetters * **

1

1

1

2

2

3

3

4

etc.

etc.

* Includes like workmen, apprentices, etc.

** Employer has the latitude to deviate from said ratio by
up to a maximum of 500 hours per
contract year (June through May).

Here, it is clear that the Company has not followed this ratio over the years. The
Union
therefore is correct in pointing out that the Company since 1992 has not hired any Tile
Finishers
to assist the Tile Setters even though Article XIII, Section 6, mandates their hire. Thus, Tile
Finishers under a strict interpretation of the contract should have been hired for a total of
about
4,336 hours based upon the Company's own records. (That is how the Union computes its
$72,190.24 compensatory pay estimate).

However, it is also true that the contract here does not expressly mandate such
compensatory damages if Article XIII, Section 6, is violated. Hence, it is a matter of
arbitrable
discretion as to whether such damages should be paid.

Normally, I would order such a remedy for all of the reasons cited by the Union.
Here,
though, there are several mitigating factors as to why such a remedy should not be granted.

Thus, the Union seeks back pay for the one-year period before it filed its grievance.
Since
the Union is responsible for not filing its grievance earlier, it is unfair to burden the
Company
with a liability before December 21, 1993, the date Judziewicz first contacted the Company
about
this problem. As a result, the Union should not collect back pay for the approximately 2,000
hours covered in this period.

Secondly, the Company paid its Tile Setters the wages and benefits provided for in
their
contract. Schumacher testified to that effect and I credit his testimony. Hence, this is not a
situation of where the Company has underpaid its employes.

Thirdly, and but for a Stevens Point job, there is no proof that the Company worked
on
any union jobs after December, 1993. Schumacher testified that he has not worked on any
union
jobs for the last several years and I credit his testimony. The Company throughout this
period
therefore has not held itself out to be a union contractor and it has not received any benefits
from
being a signatory to the contract.

Furthermore, there is no evidence that the Union ever sought to negotiate over the
terms
of any contracts subsequent to the one signed by Schumacher in 1989. This shows that the
parties
have not had a viable bargaining relationship since then and that the Union for all practical
purposes since then has not represented any employes who have worked for the Company
throughout that time.

In addition, Schumacher worked alone for about 1,699 hours from June 1,
1995, to
May 31, 1996, hence supporting his claim that he is in ill health and that his business
has dropped
off significantly.

When all of these factors are combined, I conclude that compensatory pay is
inequitable
because of the highly unusual facts of this case. Hence, none will be ordered. However, the
Company is being put on express notice that it henceforth must follow the contractual
manning
requirements if it ever again works on any union jobs or if it ever again uses any unionized
employes. If it fails to do so, it shall be subject to compensatory damages.

In light of the above, it is my

AWARD

1. That no compensatory damages are warranted to rectify the Company's past
failure
to adhere to the contractual manning requirements set forth in Article XIII, Section 6,
of the
contract.

2. That the Company henceforth is required to adhere to those manning
requirements
if it ever again works on any union jobs or if it holds itself out to be a union contractor. If
it fails
to do so, it shall be liable for compensatory damages.

3. Schumacher's May 30, 1996, letter to Judziewicz
(Union Exhibit 6), which sought to
terminate the contract was invalid because it was not sent more than 90 days prior to the
contract's termination date, as was required in Article XVII. Hence, the contract is still
in effect.

4. The Union's post-hearing submission relating to
how many hours Schumacher and
employes worked also did not identify any union jobs.